May 2013 Archive for Ag in the Courtroom

John Dillard grew up on a beef cattle farm and now works as an agricultural and environmental litigation attorney with OFW Law. His blog analyzes legal issues and court decisions that affect America’s farmers and ranchers.

Imagine that you have purchased a new car. Like every other new car, your car is the cumulative result of years of research, design, and testing. Your car was tested under and has met the safety standards established by the National Highway Traffic Safety Administration (NHTSA). By meeting NHTSA standards, you are assured that your car meets minimal safety standards.

After you purchase your vehicle, an extremist environmental group files a lawsuit against NHTSA because the group believes we should stop using internal combustion engines for transportation. The group alleges that NHTSA failed to follow its own protocol in testing the safety of your new car. While their suit is pending, they request the judge to order that all sales of your car model cease. Furthermore, they request the judge to issue an order requiring all current owners, including you, to promptly dispose of your vehicle at a junkyard. Much to your chagrin, the judge complies with the request. You do not receive any compensation for your lost vehicle. However, when the judge finally hears the substance of the case, she sides with the NHTSA and rules that the environmental group’s suit was unmerited. Nonetheless, you are out of a car the money that you spent on it.

The above scenario is not as far-fetched as you might think. Anti-biotech activists have nearly done as much to prevent the growth of labor-saving and environmentally beneficial genetically-modified seeds. For instance, activists sued when USDA approved Roundup Ready alfalfa for planting. In their suit, the activists sought and received an injunction that prevented farmers from planting the crop. This injunction was in place for four years until it was finally lifted by a 7-1 decision in the Supreme Court. In another case, anti-GM activists sued to halt the planting of Roundup Ready sugar beets. Here, activists convinced a district court judge to issue an order requiring farmers that had already planted their crops to destroy the seedlings – without compensation. Fortunately, an appeals court reversed the judge’s order before it could go into effect. In both cases, it was ultimately determined that USDA complied with its responsibility under the law in regulating these new seeds and that the suits were without merit.

With this history of frivolous lawsuits in mind, Congress passed Section 735, the "Farmer Assurance Provision," in its latest continuing resolution. Although maligned as the "Monsanto Protection Act," Section 735 is intended to help farmers. Under Section 735, if USDA finds that a new seed variety does not pose a "plant pest" risk under the Plant Protection Act and that finding is later challenged in a lawsuit, USDA must, upon request, grant temporary deregulation for that seed during the pendency of the lawsuit. The Secretary of Agriculture already has this authority; Section 735 merely reinforces his authority on the matter.

Section 735 ensures that farmers are not caught literally and figuratively holding the bag wondering how they are going to absorb the sunk costs of now-illegal seed. It also ensures that farmers will not have to plow under crops that they have already invested in. The Farmer Assurance Provision provides farmers with the confidence that they will be able to purchase new, cutting-edge seeds and recover their investment. Certainly, Monsanto and other biotech companies do stand to benefit from Section 735 because their customer base is not scared away by the prospect of becoming collateral damage in a frivolous lawsuit.

Nonetheless, there is something visceral about Monsanto and biotech seeds that coastal intellectuals latch onto like prickle-burrs. It should be no surprise that some in Congress want to overturn Section 735 (which expires this fall) and prevent similar measures from arising in future legislation. Opponents of Section 735 would have you believe that Congress capitulated the federal judiciary to corporate interests. They argue that the provision places Monsanto above the law and gives it a blank check to wreak environmental havoc. However, missing from this argument is the damage that frivolous lawsuits can do to farmers who purchase a legal product.

Genetically-modified seeds undergo several years of testing and scrutiny. GM crops destined for human consumption must receive FDA approval. GM crops with insect-resistant traits, such as Bt Cotton, must undergo EPA scrutiny. All GM crops must receive approval from USDA under the Plant Protection Act. This testing process is lengthy and costs millions of dollars. However, each instance of litigation has proven that these crops have met the necessary rigors under the law. The threat of litigation has made GM seed approval a much more deliberate process because all participants know their actions will be second-guessed in court.

Anti-biotech activists will always have an axe to grind against Monsanto, Pioneer and other biotech companies. They will receive more opportunities to make sparks in the coming years as new genetic traits hit the marketplace. However, they should not be able to use farmers as collateral damage in their war against modern agriculture by forcing them to destroy their crop without compensation. Farmers are simply trying to do the best they can with the technology that is available to them. Section 735 should not be overturned.

John Dillard is an attorney with Olsson Frank Weeda Terman Matz P.C. (OFW Law), a Washington, DC-based firm that serves agricultural clients and clients with issues before federal and state courts, EPA, FDA, USDA, and OSHA. John focuses his practice on agricultural and environmental law. He occasionally tweets at @DCAgLawyer.